Holland, R. P.

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Volume 35 Issue 1 Article 14 December 1928 Motor Vehicle--Family Purpose Doctrine--Adult Son R. P. Holland West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Family Law Commons, and the Torts Commons Recommended Citation R. P. Holland, Motor Vehicle--Family Purpose Doctrine--Adult Son, 35 W. Va. L. Rev. (1928). Available at: https://researchrepository.wvu.edu/wvlr/vol35/iss1/14 This Student Notes and Recent Cases is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. STUDENT NOTES AND RECENT OASESMOTOR VEICLES-FAMILY PURPOSE DOCTRINE-ADULT SON.-The ease of Jones v. Cook,' committed West Virginia to the so-called "family purpose" doctrine. The decision has been fol-lowed repeatedly.2 A recent case3 limited its application to caseswhere the automobile was owned for family purposes and drivenby a member of the family at the time of the accident. A recentdecision of our supreme court extends the doctrine to cases wherethe driver of the family automobile is an adult, sui juris, living athome, and driving the machine without parental consent.4After the decision of Jones v. Cook,5 the case was noted in theWEST VIRGINIA LAW QUARTERLY. 6 The view was expressed thereinthat the extension or warping of agency principles to cover suchcases was unwarranted by the necessity, especially since it seemedthe province of the legislature to provide for this liability. It isnow apparent that the doctrine is with us to stay and we acceptit as a part of the of law of this jurisdiction.For purposes of discussion of this doctrine let us turn to anexamination of the law as it existed before the day of the auto-mobile. We find that the principles of agency allow recovery forinjury against one who is not the wrongdoer where the wrong-doer is acting for the other in the capacity of servant or agentand where the wrongful act can be said to be within the scopeof that authority or occupation. The owner of property wasnever before held liable for the negligent use of bailed propertywhere he did not have a hand in the negligence and where theproperty was not a dangerous instrumentality in itself. The re-sponsibility of the bailee was enough. As to the torts of his ownfamily the person was not held liable unless his authorization orparticipation was shown. With the coming of the automobile itbecame necessary to apply old principles of tort liability andagency to new relations and instrumentalities. The primary ap-plication is not difficult. We see that it is still the law, generally,that in the ease of employees hired to operate the automobile theowner is liable only where the injury complained of i. the resultof negligence of the employee while acting for the owner, and in1 90 W. Va. 710, 111 S. E. 828 (1922); 96 W. Va. 60, 111 S. r. 828(1924).2 See Aggleson 'v. Kendall, 92 W. Va. 138, 114 S. E. 454 (1922) ; Ambrosev. Young, 100 W. Va. 452, 130 S. E. 810 (1925).3 Ritter v. Hicks, 102 W. Va. 541, 135 S. E. 601 (1926).4 Watson v. Burley, 143 S. E. 95 (W. Va. 1928).5 Supra, n. 1.6 34 W. VA. L. QuAR. 53.1Holland: Motor Vehicle--Family Purpose Doctrine--Adult SonPublished by The Research Repository @ WVU, 1928STUDENT NOTES AND RECENT CASESthe scope of the employment.' It is admitted by practically allcourts that the automobile is not a dangerous instrumentality initself, though some have held that where the owner intrusts thecar to a drunken or incompetent driver his negligence in so doingwill cause his liability to a person injured by such driver.8 Itfollows that the owner is not liable for the negligence of a personto whom the automobile is bailed, unless there was negligence inthe bailment. The decisive question here is--'Who had controlover the acts of the driver.'9 As to members of the family of theowner of the automobile the old rules would have created no lia-bility for negligent operation of the vehicle unless the owner andthe person driving -be shown to be in the agency relation. Theparent was not responsible for the torts of the minor child.10This is the present holding in those jurisdictions which have re-fused application of the family purpose doctrine.Just what is the true nature of the "family purpose" doctrine?It originated from the desire of the courts to give a relief in casesof injury by the then new and strange automobile. Where thatwas a case of owner-driver it was a case of straight negligence.Where the automobile was driven by another than the owner itmust be a case of agency or a dependency for relief on thedriver himself. In the case of the hired employee agency could,and did, give relief on familiar principles. It often happened thatthe driver was a member of the family of the owner, and general-ly one who was dependent on him. Moreover, such persons fre-quently had a general permission to operate the car for theirown use. It was an easy step, in such circumstances, to the hold-ing that the owner was liable where it was shown that he hadfurnished the car for the family, and where it was being usedfor that general use, no matter how remote the use might be fromhis intent or design. This doctrine applies only to cases whereinthe car is a "family" car, and where the driver is a member ofthe family of the owner. Its application imposes a greater lia-,bility on the owner of a family car than upon the owner of acommercial car or a domestic car equipped with chauffeur. 11 If7 Adomaities v. Hopkins, 95 Conn. 239, 111 Atl. 178 (1920); Wilson V.Quick Tire Service, 52 Ga. App. 310, 123 S. E. 733 (1924); Reynolds V.Buck, 127 Ia. 601, 103 N. W. 946 (1907); Langan v. Nathanson, 161 Minn.433, 201 N. W. 927 (1918). These states have all applied the "family pur-pose" doctrine.8 Elliot v. Harding, 107 Oh. St. 501, 140 N. E. 338 (1923); Mitchell V.Churches, 119 Wash. 547, 206 Pac. 6, 36 A. L. R. 1132 (1922).9 36 A. L. 1R. 1137, 1153; 42 A. L. R. 1446.10 20 BR. C. L. "Parent and Child", §33.11 Ritter v. Hicks, supra, n. 3; Johnston v. Hare, 246 Pac. 546 (1926);Doss v. Elec. Light, etc., Co., 193 Ky. 499, 236 S. W. 1046 (1922); Rich-ardson v. Weiss, 152 Minn. 391, 394, 188 N. W. 1008 (1922).2West Virginia Law Review, Vol. 35, Iss. 1 [1928], Art. 14https://researchrepository.wvu.edu/wvlr/vol35/iss1/14WEST VIRGINIA LAW QUARTERLYwe may conceive the field of liability for motor car injuries as anentirety we perceive that the doctrine of the "family purpose"car is a superstructure reared upon a small part of that field.It is regarded as an unsatisfactory development by many of thecourts which apply it, and it is totally refused by perhaps asmany as have accepted it."In the jurisdiction adopting this anomalous rule the orthodoxargument is that since the owner of the vehicle has made it hisbusiness to furnish a motor car for his family the operation ofthat car by any member of the family is an act in furtheranceof his design and in the course of his authority to the family, ex-press or implied."Some writers have advanced the opinion that the law of agencyowes its origin to the desire of the courts to fix a liability for theact of the servant upon the master, one of the financially respon-sible. 4  In the beginning of that development it may have beenlooked upon as anomalous. The great body of our law has de-veloped gradually and by almost imperceptible expansion. It iswithin the realm of possibility that this doctrine as to the family12 The following cases approve: Benton v. Regesser, 20 Ariz. 273, 179Pac. 966 (1919); Hutchins v. Haffner, 63 Colo. 365, 167 Pac. 966 (1917);Haugh v. Kirsch, 105 Conn. 429, 135 Atl. 568 (1927); Griffin v. Russell,144 Ga. 275, 87 S. E. 10 (1915); Collison v. Cutter, 186 Ia. 276, 170 N.W. 420 (1919); Rauckhorst v. Kraut, 216 Ky. 323, 287 S. W. 895 (1926);Payne v. Leininger, 160 Minn. 75, 199 N. W. 435 (1924) ; Linch V. Dobson,108 Neb. 632, 188 N. W. 227 (1922; Boes v. Howell, 24 N. Mex. 142, 173Pac. 966 (1918); Watts v. Leffler, 190 N. C. 722, 130 S. E. 630 (1925);Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25 (1919); Foster v. Farra,117 Ore. 286, 243 Pac. 778 (1926); Smith v. Jamison, 89 Pa. Super. 99,(1926) Mooney v. Gilbreath, 124 S. C. 1, 117 S. E..186 (1923); King V.Smythe, 140 Tenn. 217, 204 S. W. 296 (1918); Birch v. Abercrombie, 74Wash. 486, 133 Pac. 1020 (1913); Jones v. Cook, supra, n. 1; Cloyes v.Plaatje, 231 Ill. App. 183 (1923). Contra: Johnson v. Newman, 168 Ark.836, 271 S. W. 705 (1925); Spence v. Fisher, 184 Cal. 209, 193 Pac. 255(1920) ; Daily v. Schneider, 118 Kan. 295, 234 Pac. 951 (1925); Fuller v.Metcalf, 125 Me. 77, 130 Atl. 875 (1925); Myers v. Shipley, 140 Md. 380,116 AtlI. 645 (1922); McGowan v. Longwood, 242 Mass. 337, 136 N. E. 72(1922); Bollman v. Bullene, 200 S. W. 1068 (Mo. 1918); Clawson V.Schroeder, 63 Mont. 488, 208 Pac. 924 (1922); Elms v. Flick, 10o Oh. St.186, 126 N. E. 66 (1919); Campbell v. Kirkpatrick, 120 Okla. 57, 249 Pac.508 (1926); Landry v. Richmond, 45 R. I. 504, 124 Atl. 263 (1924); Afc.Farland v. Winter, 47 Utah 598, 155 Pac. 437 (1916) ; Blair v. Broadwater,121 Va. 301, 96 S. E. 632 (1918); Papke v. Hearle, 189 Wis. 156, 207 N.W. 261 (1926); Doran v. Thomsen, 76 N. J. L. 754, 71 AtI. 296 (1908)distinguished in later cases, see Venghis v. Nathanson, 101 N. J. L. 110,127 Atl. 175 (1925); Van Blaricom v. Dodgson, 220 N. Y. il, 115 N. E.443 (1917); (cf. McCrossen v. Moorehead, 200 N. Y. S. 581 (1923); Smithv. Weaver, 73 Ind. App. 350, 124 N. E. 503 (1919).'i Graham v. Page, 300 Ill. 40, 132 N. E. 817 (1921); King v. Smythe,supra, n. 12; Jones v. Cook, supra, n. 1; Payne v. Leininger, aupra, n. 12.14 See Y. B. Smith, 23 CoL. L. REv. 444.3Holland: Motor Vehicle--Family Purpose Doctrine--Adult SonPublished by The Research Repository @ WVU, 1928STUDENT NOTES AND RECENT CASESautomobile may be, not an unwise expansion or mistreatment ofagency, but a new liability in tort which will become accepted bydegrees. In spite of the persistency of the courts in calling thisthing agency it is true even today that it resembles an inde-pendent tort liability-it need only be extended over the remainderof the situations where the owner places a car in the hands ofanother for operation. As to the wisdom, or necessity, of so ex-tending it the courts or the legislature must decide, preferablythe legislature.-R. P. HoLLANwD.TAX EXEMiPTION OF PROPERTY USED FOR EDUCATIONAL, RiE-LIGIOUS AND CHARITABLE PURposE.-The Constitution of WestVirginia provides that "all property, both real anid personal, shallbe taxed in proportion to its value * " 0 but property used foreducational, literary, scientific, religious or charitable purposes;all cemeteries and public property may, by law, be exempted fromtaxation."' Pursuant to the authority vested in it by this pro-vision of the Constitution the legislature has by statute exemptedcertain property, among which is the following: "' * propertyused exclusively for divine worship; parsonages, * * * propertybelonging to colleges, seminaries, academies, and free schools, ifused for educational, literary or scientific purposes * * * propertyused for charitable purposes, and not held or leased out for profit,* 0 all property belonging to benevolent associations, not con-ducted for private profit, and used exclusively for the purposesof moral and physical education, * * * any hospital not heldor leased out for profit; * '" ' and, provided further, that suchexemption from taxation shall apply to all property, includingthe principal thereof, and the income therefrom, held for a termof years or otherwise under a bona fide deed of trust v * by atrustee, e "  required by the terms of such trust to apply, an-nully, the income derived from such property to education, re-ligion, charity and cemeteries, when not used for private pur-poses or profit.Several interesting questions have arisen, and may arise, underthese provisions of our Constitution and statute. Our first in-quiry is, may the legislature exempt any property from taxationthat it chooses, or is it limited in that it can only exempt "prop-erty used for educational, literary, scientific, religious or charitableI Co.ST. art. 10, §1.2 CODE, ch. 29, §57. Note Amendment 1927 Acts, ch. 14.4West Virginia Law Review, Vol. 35, Iss. 1 [1928], Art. 14https://researchrepository.wvu.edu/wvlr/vol35/iss1/14

Motor Vehicle--Family Purpose Doctrine--Adult Son

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Motor Vehicle--Family Purpose Doctrine--Adult Son

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